Will it work or will it not? Important clauses in mutual wills.

11 June 2020

Mutual wills are wills made by two people who promise each other not to change or revoke their wills unless they make another will that either enhances, or keeps their agreement intact. They also promise not to sell or get rid of any property that is specifically mentioned in their will.

The recent case of McNeish v McArthur is an example of how important it is to include certain clauses in mutual wills.

Ian and Lorraine married in 1984 and each had children from previous marriages. Ian and Lorraine first signed wills in 1994, where if one of them died, their estate would pass to the other and then when they both had died, their estates would pass to all their children in equal shares.

In 2002, both Ian and Lorraine updated their wills. These were materially identical and under similar terms as their previous wills.

Seems fair, right?

In 2003 Lorraine was diagnosed with cancer and passed away in 2005. As stated in her will, Ian was her executor and her estate passed to him. Thinking that Ian would later provide for them, Lorraine’s children did not contest this.

Following Lorraine’s death, and after purchasing more property, Ian made two other wills. The first of these left property to his granddaughter and step-grandson, as well as his and Lorraine’s children. His last will revoked all other wills before it, made his son executor of his estate and left everything to his own children and nothing to Lorraine’s children.

Not surprisingly, after Ian’s death in 2018, Lorraine’s children were shocked to find that Ian had made two more wills after their mother’s death and had left them nothing. They then applied to the High Court for a share of Ian’s Estate.

The Court does not necessarily find mutual wills valid just because people have made corresponding wills that look similar. For there to be valid mutual wills, there needs to be either some form of contract or an understanding that neither person would revoke their will and/or deal with property differently from what was stated in the mutual wills.

In the McNeish case, it was found that more likely than not, Ian and Lorraine were made aware wills are revocable documents that can be changed at any time. There was no evidence of a non-revocation clause, or of them giving up the opportunity to change their wills in the future.

As many people would, Lorraine relied on their promises that each of them would provide for the other’s children after their death. Ian reneged on his promise and unfortunately for Lorraine’s children Ian’s final will stood.

This case gives us an example of the importance of the careful drafting of wills and the inclusion of clauses that prevent doubt and confusion. We specialise in sorting out disputes over wills.

Jo Naidoo and Rebekah Revell are part of our Family Disputes team at Norris Ward McKinnon.